William Barr vs. Eric Holder: A Tale of Two Attorneys General

Attorney General William Barr testifies before a Senate Judiciary Committee on Capitol Hill in Washington, D.C., May 1, 2019. (Aaron P. Bernstein/Reuters)The differences between the cases are informative.

Speaker of the House Nancy Pelosi has declared it a “constitutional crisis” that Attorney General William Barr refuses to divulge the small parts of the Mueller report that contain grand-jury material. By a straight party-line vote, the House Judiciary Committee voted to hold Barr in contempt of Congress.

What did Pelosi think when Barr’s predecessor, Eric Holder, refused to divulge documents to a congressional committee and was held in contempt? “Ridiculous!” she said. What did Holder and Obama say? That the House subpoena was a violation of “separation of powers.”

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To partisans, the difference between the cases is obvious. Barr is defending Trump; Holder was Obama’s self-proclaimed “wing man.” That is enough for many journalists and most politicians. The rest of us might want to know: What is the legal or constitutional difference between Holder’s refusal to provide documents and Barr’s?

Here is the background of the Holder contempt. The Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE), a unit of Holder’s Department of Justice (DOJ), conducted an operation called “Fast & Furious,” intended to track illegal gun sales. In fact it put hundreds of weapons in the hands of Mexican criminal gangs, leading to the death of an American officer. On February 4, 2011, after news of the operation emerged, Holder’s assistant attorney general sent a letter to Congress declaring that the Obama administration had no knowledge of the operation. This letter was false, as Holder later admitted.

A congressional committee wanted to know why it had been misled. BATFE employees leaked to Congress that the department was still suppressing the truth about the operation and retaliating against whistleblowers. The committee wanted to dig into that. It demanded DOJ documents “relating to actions the Department took to silence or retaliate against Fast and Furious whistleblowers,” so that it could determine “what the Department knew about Fast and Furious, including when and how it discovered its February 4 letter was false, and the Department’s efforts to conceal that information from Congress and the public.”

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The committee’s first request for documents came early in March of 2011. The department did not comply with the request. On March 31, the committee issued its first subpoena. Again the department failed to comply. Over the next six months, the committee held a series of hearings, and Holder eventually admitted that the Fast & Furious operation had been “fundamentally flawed” and that DOJ’s February 4 letter denying administration knowledge was “inaccurate.” DOJ released thousands of pages of documents, but refused to give Congress all the documents it was asking for.

On October 12, 2011, DOJ informed Congress that it would not divulge any more documents. The committee issued a second subpoena. Attorney General Holder refused to comply. During a committee hearing, Chairman Darrell Issa revealed that the attorney general had “refused to cooperate, offering to provide subpoenaed documents only if the committee agrees in advance to close the investigation.” He commented that “no investigator would ever agree to that.”

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According to the nonpartisan Congressional Research Service, “as negotiations between the Attorney General and Chairman Issa continued, the Chairman reportedly narrowed the scope of the documents that would need to be produced in order to avoid a contempt vote,” but “the Attorney General maintained that he could not provide the Committee with the requested documents.”

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Nancy Pelosi and Jerrold Nadler did not declare this a constitutional crisis. They backed Holder.

On June 19, 2012, President Obama invoked executive privilege, and on the same day, the House committee voted to hold Attorney General Holder in contempt of Congress. The committee vote was 23–17. The full House voted Holder in contempt by a lopsided vote of 255–67, with 17 Democrats voting for the contempt and many more staying home to avoid having to cast a vote.

How does this compare with the Barr contempt? Under regulations written by the Clinton administration, the special prosecutor is instructed to submit a “confidential” report to the attorney general at the end of an investigation. It is entirely the prerogative of the attorney general to decide whether to release any of the report to the public or to Congress. In his discretion, Attorney General Barr decided to release the Mueller report in its entirety, but for two categories of redactions, which were made in conjunction with the Mueller team.

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One set of redactions protected innocent third parties, “peripheral to the investigation,” whose privacy would be compromised. Barr offered to let members of Congress see a version of the report without these redactions. Five Republicans have accepted the offer, but no Democrats.

The second set of redactions, amounting to an estimated 1.5 percent of the report, applied to grand-jury materials.

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Under Federal Rule of Criminal Procedure 6(e) — passed by Congress — it is illegal to release grand-jury materials except for a specified list of purposes, and congressional investigations do not appear on this list. In the past, some courts issued orders permitting the revelation of grand-jury materials in broader circumstances under their general “supervisory powers.” The District of Columbia Circuit, whose precedent governs this matter, recently rejected this position. In McKeever v. Barr (April 5, 2019), the court held that grand-jury material must be kept secret except for the specific reasons listed in the rule. Perhaps that decision is incorrect, but unless and until it is overturned or Congress amends the law, it would be illegal for Barr to comply with Nadler’s demands.

In the Fast & Furious matter, the Republicans engaged in 15 months of negotiations between the House Committee’s first subpoena on March 30, 2011, and its finding of contempt against Holder on June 19, 2012, repeatedly narrowing its requests in hopes of getting cooperation. The Democrats subpoenaed the unredacted Mueller report on April 19 and voted to hold Barr in contempt three weeks later, on May 8. The vote was entirely on party lines, with every Republican voting against. Even Chairman Nadler seems to recognize that Barr would need to get a court order before he could reveal the grand-jury material, but he held Barr in contempt anyway.

Attorney General Barr has stated a single, narrow reason for refusing to give Congress an unredacted version of Mueller’s Report: the legal prohibition against revealing grand-jury materials. Obama and Holder asserted a far more sweeping privilege:

The compelled production to Congress of these internal Executive Branch documents generated in the course of the deliberative process concerning the Department’s response to congressional oversight and related media inquiries . . . would inhibit the candor of such Executive Branch deliberations in the future and significantly impair the Executive Branch’s ability to respond independently and effectively to congressional oversight. Such compelled disclosure would be inconsistent with the separation of powers established in the Constitution and would potentially create an imbalance in the relationship between these co-equal branches of the Government.

Let us parse these claims. First, “such compelled disclosure would be inconsistent with the separation of powers established in the Constitution and would potentially create an imbalance in the relation between these co-equal branches of the Government.” In other words, the idea that the executive branch is constitutionally compelled to comply with all subpoenas issued by congressional committees is contrary to the separation of powers. Contradiction? In 2012, when Holder was resisting a congressional subpoena, the separation of powers precluded compelling production of the subpoenaed documents. Today, resistance — even with a specific legal basis — is a “constitutional crisis.”

Second, the Obama executive-privilege letter stated that compelled disclosure of internal executive-branch documents about the deliberative process “would inhibit the candor of such Executive Branch deliberations in the future.” The Fast & Furious documents involved low-level Department of Justice “deliberations” about how to deceive Congress and retaliate against whistle-blowers. No law protected the Fast & Furious documents. The DOJ employees engaging in those discussions had no legal expectation of confidentiality (unless everything said by executive-branch employees is automatically exempt from congressional scrutiny). If the revelation of those discussions “would inhibit the candor” of executive-branch deliberations, what about revealing the content of discussions between the president of the United States and his White House counsel? (Trump waived his attorney-client privilege for purposes of the Mueller investigation, but not for all purposes.)

Do we really want to say that in the future, contrary to the regulations, special-prosecutor reports are not confidential, and that any information imparted to the special prosecutor in confidence will automatically be disclosed to the public through a congressional proceeding? I can think of few things that would make special-prosecutor investigations less effective in the future. Trump’s lawyers waived privileges precisely to get the Mueller investigation over more quickly, so that the American public would know that there was no collusion between his campaign and the Russians. Future presidents would be well advised not to waive any privileges, lest embarrassing facts on charges not brought be exposed.

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If President Obama was justified in invoking executive privilege to protect the confidentiality of documents and conversations that are unprotected by any law, how can Obama’s admirers be so insistent that Barr is wrong to invoke executive privilege to protect grand-jury materials, which are among the most highly protected and confidential of all categories of information in our system?

One final difference. Instead of making overheated claims of constitutional crisis, threatening the attorney general with impeachment, and even suggesting sending the congressional marshals to arrest Barr and lock him up in the Capitol basement (was Pelosi just joking about that?), the Republicans in 2012 calmly went to court to seek a peaceful resolution of the dispute. Unfortunately, Holder ran out the clock in district court, the Obama administration came to an end without ever complying with the subpoenas, and the American public never got an answer.

Michael W. McConnell, a former federal appellate judge, is the Richard & Frances Mallery Professor of Law at Stanford Law School, Director of Stanford’s Constitutional Law Center, and Senior Fellow of the Hoover Institution.

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